The Constitution andFederal Jurisdiction in American Education

by Kerry L. Morgan

Presidential and Congressional Acknowledgments of Historical and Constitutional Limitations

During his First Annual Address on January 8, 1790, George Washington advanced his goals for the young nation. This included a variety of objects of great importance, such as naturalization, weights and measures, and foreign affairs. He also encouraged Congress to undertake certain projects and advance them by proper means.

Noting the many advantages of knowledge and its desirability, he requested Congress to consider how this end may be properly obtained. Washington stated, “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients, will be well worthy of a place in the deliberations of the legislature.” 26

On May 3, Mr. Smith of South Carolina moved that the President’s request, which specifically encouraged science and literature, be referred to a selected House committee. This was objected to by Mr. Stone who “inquired what part of the Constitution authorized Congress to take any steps in a business of this kind? Fox his part, he knew of none.”27

An accurate scenario of what then took place has been preserved in the Annals of Congress. It notes that Mr. Stone continued;

We have already done as much as we can with propriety; we have encouraged learning by giving to authors an exclusive privilege of vending their works; this is going as far as we have the power to go by the Constitution.

Mr. Sherman, said, that a proposition to vest Congress with power to establish a National University was made in the General Convention, but it was negatived. It was thought sufficient that this power should be exercised by the States in their separate capacity.

Mr. Page observed, that he was in favor of the motion. He wished to have the matter determined, whether Congress has, or has not, a right to do any thing for the promotion of science and literature. He rather supposed that they had such a right; but if, on investigation of the subject, it shall appear they have not, he should consider the circumstances as a very essential defect in the Constitution, and should be for proposing an amendment . . . . 28

These debates acknowledged the constitutional limitations precluding Congress from assuming jurisdiction over education. They summarized the views of the Founding Fathers on the subject.

Seven years later, in his Eighth Annual Address delivered December 7, 1796 Washington again, “proposed to the consideration of Congress the expediency of establishing a national university and also a military academy.”29 Meanwhile, on Monday, December 12, 1796 Mr. Madison moved to refer to the House a Memorial from the Commissioners of the Federal City.30 The Memorial, according to Madison, prayed “that Congress would take such measures as that they may be able to receive any donations which may be made to the institution.”31

During debate on Monday, December 26, the House took up both the President’s request and the Commissioner’s Memorial. With respect to the latter, Mr. Madison was of the opinion that, “Congress has sole jurisdiction over that District . . . .”32 Since the Memorial specifically called for a university in the District of Columbia, he would vote for it. He was quick to note, however, that such a university was materially different than a national university, the former not requiring any funds from the federal treasury.33

On the following day, Mr. Craik also expressed the same perception:

The Commissioners seemed to have anticipated the objections which have been made to a National University, and purposely avoided inserting it in their Memorial. They have cherished similar ideas which I have, of the eligibility of such an institution, but foreseeing that plan would not be approved they have relinquished that, and only requested incorporation to enable them to act in trust for the institution. They do not call upon this House to put their hand into the public Treasury.34

While the petition expressed the desirability of a university in the District of Columbia, within the power of Congress over that District, the debate resulted in a vote to postpone the matter indefinitely.35

With respect to Washington’s proposal, also postponed, the general tenor of Congress was that the President was perfectly entitled to take this last opportunity to recommend such a proposal as a matter of conscience. With respect to both proposals, however, Mr. Nicholas said:

I would not be supposed to want a due respect either for those Commissioners or for the President; but, merely because recommended by them, we are not warrantable in adopting it.36

Thus at the conclusion of Washington’s second term, the House was of the opinion that while Congress had been granted power over the District of Columbia, the establishment of a university in that District, even though privately endowed, was a doubtful exercise of that particular grant of authority.37

President Thomas Jefferson, also a friend to education, expressed his educational ideas in his Second Inaugural Address delivered on March 4, 1805. With pride, he first reiterated the ability of the United States of America to meet her fiscal obligations by inquiring, “It may be the pleasure and the pride of an American to ask, what farmer, what mechanic, what laborer ever sees a taxgatherer of the United States?”38 Referring to revenue contributions on the conscription of foreign articles, he continued,

These contributions enable us to support the current expenses of the government. . .and to apply such a surplus to our public debt. . .and that redemption, once effected, the revenue thereby liberated may, by a just repartition of it among the states and a corresponding amendment of the Constitution, be applied in time of peace to rivers, canals, roads, arts, manufacturers, education, and other great objects within each state.39

In other words, once the public debt was redeemed, which appeared imminent, the United States would have a surplus. These funds could then be applied to education provided the military needs of the country were first met and provided that the Constitution was amended to permit Congress jurisdiction over education. Furthermore, the federal government could accomplish all this plus manage its constitutional business at hand, without an internal tax on its citizens. It takes no exhaustive knowledge of current events to understand that each of these laudable aspects of Jefferson’s administration are reversed today, point by point.40

So often proponents of government education stop at this point and erroneously idolize Jefferson as a champion of state controlled secular education. They ignore his official statements, and fail to acknowledge the balance of his federal education proposals. Referring to federal intervention in education based on a surplus of federal revenues, he observed:

The subject is now proposed for consideration of Congress, because if approved by the time the state legislatures shall have deliberated on this extension of the federal trust, and the laws shall be passed and other arrangements made for their execution, the necessary funds will be on hand and without employment.41

Commenting directly on the constitutional issue, he concluded:

I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public moneys to be applied.42

For Jefferson, federal involvement in education was not a matter of ‘how much’ or the most ‘expedient means.’ It was an issue of constitutional jurisdiction. An honest observance of the compact revealed that Congress simply had no constitutionally delegated power to establish or encourage education and that it had no recourse to the federal treasury for any educational object as the Constitution stood. His priorities were in fulfilling the military purposes of government.43 If there were any surpluses, then other worthy objects could be entertained. This of course all presumed that an enabling amendment to the Constitution was prerequisite.

James Madison as President was similarly aware of the constitutional limitations on the Federal Government and particularly Congress. Madison had been instrumental in presenting a measure at the Constitutional Convention to establish a national university which was rejected on at least two separate occasions.44 He had also transmitted to the House two items: Washington’s request that Congress consider establishing a national university, and the Commissioners’ Memorial, to establish a local university in the District of Columbia. Both of these items were postponed indefinitely.45 Madison was also very well acquainted with the Constitution.46

In his First Inaugural Address, delivered March 4, 1809, he reiterated certain constitutional duties of his office,

to support the Constitution, which is the cement of the Union, as well in its limitations, as in its authorities; to respect the rights and authorities reserved to the States and to the people as equally incorporated with and essential to the success of the general system.47

Madison was not parroting the language of expediency. He was not indicating that the same power was shared by the federal and state governments, and the people. He was affirming the Constitution as it was intended, not supposing that the federal government should act beyond the scope of its enumerated power.

Turning specifically to education, he expressed his desire that the federal government should observe proper constitutional restraints. He encouraged Congress “to promote by authorized means (certain internal improvements); to favor in like manner, the advancement of science and the diffusion of information. . .”48 (emphasis added). In 1815 he clarified what he meant by “authorized means” by calling for a constitutional amendment, in order for the federal government to obtain “national jurisdiction and national means” to implement a series of internal improvements.49 He then proceeded to urge Congress (“in like manner”) to establish a “national seminary of learning within the District of Columbia, and with the means drawn from the property therein, subject to the authority of the General Government.”50 He arrived at this constitutional solution in 1815, partly based on Congress’ view of the subject expressed by them in 1811.51

The House Committee notes are worth reviewing in detail for they summarize much of what has been articulated

(I)t was necessary to consider whether Congress possessed the power to found and endow a national university.

It is argued, from the total silence of the Constitution, that such a power has not been granted to Congress, inasmuch as the only means by which it is therein contemplated to promote the progress of science and the useful arts, is, by securing to authors and inventors the exclusive right to their respective writings and discoveries for limited times. The Constitution, therefore, does not warrant the creation of such a corporation by any express provision.

But it immediately occurred that, under the right to legislate exclusively over the district wherein the United States have fixed their seat of Government, Congress may erect a University at any place within the ten miles square ceded by Maryland and Virginia. This cannot be doubted.

Here, however, other considerations arise. Although there is no Constitutional impediment to incorporation of trustees for such a purpose, at the City of Washington, serious doubts are entertained as to the right to appropriate the public property for its support. The endowment of a University is not ranked among the objects for which drafts ought to be made upon the Treasury. The money of the nation seems to be reserved for other uses.52

The Committee concluded that,

The erection of a university, upon the enlarged and magnificent plan which would become the nation, is not within the powers confided by the Constitution to Congress. . . . If, nevertheless, at any time legislative aid should be asked to incorporate a district university for the local benefit of the inhabitants of Columbia, and of funds of their own raising, there can be no doubt that it would be considered with kindness, as in other cases; but it must be remembered that this is a function totally distinct from the endowment of a national university, out of the treasure of the United States, destined, in its legitimate application, to other and very different purposes .53

During the Presidency of Madison’s successor, James Monroe, the issue of a seminary for education was once again raised. Outlining his constitutional perspective, he noted in the context of internal improvements that, “the result is a settled conviction in my mind that Congress do(es) not possess the right.”54 He also observed, however, that:

In cases of doubtful construction, especially of such vital interest, it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of power. We may confidently rely that if it appears to their satisfaction that the power is necessary, it will always be granted.55

Monroe, however, did not consider the illegitimacy of a seminary of learning to be in doubt. To him, Congress simply did not have the power to intervene in educational affairs or fund educational ventures from the national treasury without a constitutional amendment. The history of the national university and seminaries of learning amply demonstrated that much. Referring to internal improvement measures he stated:

I think proper to suggest also, in case this measure is adopted, that it be recommended to the States to include in the amendment sought a right in Congress to institute likewise seminaries of learning . . . . 56

This suggestion was brought before the House and the proposition to consider the resolution was rejected.57

The Presidency of John Quincy Adams illustrated a similar concern for the integrity of the Constitution. In his First Annual Message of 1825 he observed that “moral, political, (and) intellectual improvements are duties assigned by the Author of Our Existence to social no less than to individual man.”58 He strictly cautioned Congress, as they undertook such improvements, to adhere to the powers which were delegated, cautioning; “the exercise of delegated powers is a duty as sacred and indispensable as the usurpation of powers not granted is criminal and odious .”59

The principle of limited and enumerated constitutional authority in Congress, acknowledged by former presidents, was also recognized by President Andrew Jackson. In the context of congressional appropriations from the federal treasury for roads and canals without first resorting to an amendment,60 Jackson stated that,

If it be the wish of the people that the construction of roads and canals should be conducted by the Federal Government, it is previous amendment of the Constitution, delegating the not only highly expedient, but indispensably necessary, that a necessary power and defining and restricting its exercise with reference to the sovereignty of the States, should be made.61

There is little doubt that just as Monroe considered a constitutional amendment as an essential prerequisite in granting the federal government jurisdiction over roads, canals and education, that had education been among the objects of the proposed bill it most likely would have also been vetoed. Even so, the enduring principle that Jackson relied upon is still binding:

When an honest observance of constitutional compacts cannot be obtained from communities like ours, it need not be anticipated elsewhere. . . and the degrading truth that man is unfit for self-government admitted. And this will be the case if expediency be made a rule of construction in interpreting the Constitution. Power in no government could desire a better shield for the insidious advances which it is ever ready to make upon the checks that are designed to restrain its action.62

Land-Grant Legislation

In 1859 President James Buchanan vetoed an Act originally introduced by Justin Morrill which granted public land for the maintenance of agricultural colleges within the several states already admitted to the Union. His veto was based upon the fact that the Act was “both inexpedient and unconstitutional.”63 It was inexpedient because it was “passed at a period when we can with great difficulty raise sufficient revenue to sustain the expenses of the Government.”64 He went on to explain to Congress that the “Constitution is a grant to Congress of a few enumerated but most important powers. . . . All other powers are reserved to the States and to the people.”65 He reiterated for Congress that the “several spheres of government action should be kept distinct from each other.”66 Furthermore, the

Federal Government, which makes the donation, has confessedly no constitutional power to follow it into the States and enforce the application of the funds to the intended objects. As donors we shall possess no control over our own gift after it shall have passed from our hands.67

If this lacked clarity, he concluded,

I presume the general proposition is undeniable that Congress does not possess the power to appropriate money in the Treasury, raised by taxes on the people of the United States, for the purpose of educating the people of the respective States. It will not be pretended that any such power is to be found among the specific powers granted to Congress nor that ‘it is necessary and proper for carrying into execution’ any one of these powers.68

Though Buchanan vetoed the Land Grant Act in 1859, President Lincoln signed into law an almost identical Act three years later. This act was also introduced by Justin Morrill and became known as the Morrill Land Grant Act of 1862.69 It was hotly debated in both Houses of Congress and has been characterized as the “first real Federal role in education, the first divergence from Constitutional intent.”70

Morrill himself envisioned a broader federal presence than the Constitution permitted or the Land Grant Act suggested. He declared in 1888 that “I have attempted . . . not wholly unsuccessfully to bring forward a measure that would reinforce the Land-Grant Colleges with a supplemental national fund.”71 (emphasis added)

Buchanan rejected this type of congressional intervention on the grounds of constitutionality. Lincoln, however, did not draw upon Buchanan’s constitutional position. Buchanan had accepted prior congressional grants of federal territories and lands made to new states as they successively enter the Union, but rejected the outright donation of lands (suggested by Morrill) to all states for the erection of colleges. The former, if it rested on any congressional power, was contained in Congress’ constitutional authority to dispose of territories belonging to the United States.72 The advocates of the Land Grant bill, however, sustained their position by construing the constitutional phrase “to dispose of” so as to embrace objects not contemplated by an enumerated power in the Constitution.

Buchanan had pointed all of this out very clearly in his Veto Message of February 24, 1859, but by 1862 the exigencies of the circumstances, the ongoing Civil War and the absence of substantial southern representation in Congress, proved detrimental to constitutional limitations.73 Buchanan’s warning that Land Grant legislation would “confer upon Congress a vast and irresponsible authority, utterly at war with the well-known jealousy of Federal power which prevailed at the formation of the Constitution,”74 was permanently set aside.

Thus between 1777 and 1859, an honest consideration of the constitutional compact was demonstrated. The Constitutional and historical limitations on the authority of the federal government were duly observed. Though a variety of factual rationales for federal intervention into education were asserted, they were always rejected in light of the constitutional enumeration of powers and the Ninth and Tenth Amendments. Not until 1862 did the first wedge of federal jurisdiction into education become manifested. The most definitive congressional usurpation, however, outside the Article IV, Section 3, Clause 2 Land Grant debate, came in 1867 with the formation of the Federal Department of Education.

III. EARLY FACTUAL LIMITATIONS

The major factual arguments employed by proponents of Congressional intervention in education involved 1) the availability of territories, 2) the lack of suitable American Universities, and 3) the availability of surplus revenues in the treasury.

The Congress, operating under the Articles of Confederation, encouraged settlement of wilderness territories which later became states, by setting aside tracts of land for educational purposes. Today, however, Congress is no longer endowed with territories from which states could be formed. The vast territories formerly held are now under the authority of state governments which preclude federal intervention with respect to non-enumerated matters. Thus, the belief that a precedent was established by assertion of federal jurisdiction over territories, even if proven, could never be utilized to accord the national government jurisdiction over parents or states with respect to education.75

George Washington identified another factual basis for federal intervention. He observed in a letter to the Commissioners of the Federal District that, “It has always been a source of serious reflection and sincere regret with me that the youth of the United States should be sent to foreign countries for the purpose of education.”76

The Commissioner of Education also noted in 1895 that, “The point at which Washington was most at variance with current practice was his strong objection to sending American youth abroad to study. . . . But here, again, conditions have greatly changed.”77 He stated that even “Jefferson wrote, after studying foreign educational institutions, that, besides speaking the modern languages, every article of general education. . . could be as well acquired at William and Mary College as in any place in Europe.”78

No one today would seriously contend that such a rationale for federal intervention in education is legitimate, though some would argue that the American university is equally at risk as its European counterpart, due to centralized control and influence.

Thomas Jefferson articulated the third rationale inviting federal intervention into education – surplus revenue. Noting that after the federal government paid all its legal obligations, there will “long be an accumulation of moneys in the Treasury.” He asked, “To what other objects shall these surpluses be appropriated?”79 Among those objects in response, was education. While he was certain that a constitutional amendment would be required for such an end, he nevertheless based the immediate factual rationale for federal intervention on the surplus of federal funds.80

In the final analysis, whenever transfer of monies to the states for educational purposes was contemplated, it was only when all constitutionally enumerated federal expenses were met, a surplus existed in the federal treasury, distribution was to be without congressional strings, and a constitutional amendment was presumed necessary. None of these factual arguments proved long lasting. They are all no longer relevant to factually justify any federal intervention into education. This is the nature of factual arguments, both historically and contemporarily.

There was nothing in it that contemplated pledging the United States to find funds for its support; nor was it the object of the report to establish a National University . . . the object of the Commissioners was not to establish a National University or obtain money from the United States, but their direct object was, to be incorporated, so as to be enabled to receive such legacies and donations as may be presented to the institution . Id. at 6:1698.

Mr. Baldwin continued that “nothing can prove it improper, since no pecuniary aid is required, no grant of money is asked. If it was, I should . . . disapprove of it . . . .” Id. Representative Livingston though stating the proposition appeared straightforward, nevertheless voiced some reservations by inquiring, “If nothing was intended but a mere incorporation, why not apply to the State that could incorporate such a body? Something further seemed to be intended: public patronage was wanted to support this institution.” Id. at 6:1701. Representative Lyman cautioned: “As far as I can understand, the land which is now to be appropriated for this University, is the property of the United States. Does not this look as though the United States are to patronize and support the establishment? If we take this step, I shall very much wonder if our next is not to be called upon to produce money.” Annals of Congress, supra note 30, at 6:1699. See also Germann, National Legislation, supra note 14, at 23-25, and Hinsdale, U.S. Education, supra note 25, at 2:1298-1305.35.Annals of Congress, supra note 30, at 6:1711.36.Annals of Congress, supra note 30, at 6:1796.37. U.S., Constitution, art. I, sec. 8, cl. 17, supra note 11. See note 34 supra.38. Richardson, Presidents, supra note 16, at 1:379, Second Inaugural Address, March 4, 1805. Jefferson also notes that “the suppression of unnecessary offices, of needless establishments and expenses, enabled us to discontinue our internal taxes.” Id.39. Richardson, President, supra note 16, at 1:379 (emphasis in original), Second Inaugural Address, March 4, 1805. Jefferson stated:

there will still ere long be an accumulation of moneys in the Treasury beyond the installments of public debt which we are permitted by contract to pay. . . . Nor, if our peace continues, will they be wanting for any other existing purpose. The question therefore now comes forward, to what other objects shall these surpluses be appropriated . . . during those intervals when the purposes of war shall not call for them? Id. at 1:409.

40. Noting the fact of surplus revenues, the condition of peace and the satisfaction of military purposes, Jefferson also stated:
Education is here placed among the articles of public care, not that it would be proposed to take its ordinary branches out of the hands of private enterprise, which manages so much better all the concerns to which it is equal . . . . Richardson, Presidents, supra note 16, at 1:409.41. Richardson, Presidents, supra note 16, at 1:409-10, Sixth Annual Message, December 2, 1806.42. Richardson, Presidents, supra note 16, at 1:410, Sixth Annual Message, December 2, 1806. Jefferson also added “that if Congress, approving the proposition, shall yet think it more eligible to found (a national establishment for education) on a donation of lands, they have it now in their power . . . ” See text accompanying note 79 infra.43. His loyalty to the Constitution as a fixed and uniform document was President to utilize improperly and unconstitutionally the power of made evident by the fact that Jefferson took no opportunity as the Federal Government to achieve these educational objectives for the sake of political popularity. This is demonstrated by recurrence to his 1779 and his 1816 proposals to the Commonwealth of Virginia. In 1779 he proposed to establish a university in Virginia which was rejected. In 1816 he again proposed to establish a university within Virginia’s exclusive jurisdiction, by upgrading “The Central College” already in existence at Charlottesville, Virginia. The 1816 proposal was accepted and the University of Virginia eventually began operation in 1825. Thus, Jefferson’s educational objective, having been rejected by the Commonwealth in 1779 could have easily influenced him to misuse his office of President from 1801-1809, in order to establish a university of greater magnitude and with greater resources than any state government could bring to bear. He resisted, however, this political appeal to undermine the Constitution, preferring instead to preserve, protect and defend that document. Henry S. Randall, The Life of Thomas Jefferson, 3 vols., (New York: Derby & Jackson, 1858, Library of American Civilization 20279-80), 3:461-71.44.See text accompanying notes 18-21 supra.45.See text accompanying notes 30-35 supra.46.See Gaillard Hunt, ed., The Journal of the Debates in the Convention which Framed the Constitution of the United States as Recorded by James Madison, 2 vols., (New York: G.P. Putnam’s Sons, 1908, Library of American Civilization 23016).47. Richardson, Presidents, supra note 16, at 1:468, First Inaugural Address, March 4, 1809.48. Richardson, Presidents, supra note 16, at 1:468, First Inaugural Address, March 4, 1809.49. Richardson, Presidents, supra note 16, at 1:567-68, Seventh Annual Message, December 5, 1815.50. Richardson, Presidents, supra note 16, at 1:568P Seventh Annual Message, December 5, 1815. Just three months earlier, Madison had proposed to add

to the means of education provided by the several States a seminary of learning instituted by the National Legislature within the limits of their exclusive jurisdiction, the expense of which might be defrayed or reimbursed out of the vacant grounds which have accrued to the nation within those limits.

Richardson, Presidents, supra note 16, at 1:485, Special Session Message, September 1, 1815.
In 1796, Madison noted that a university at the seat of government would hinge on “whether Congress will encourage an establishment which is to be supported entirely independent of them.” He made it clear that it would not “ask a single farthing from (Congress), nor that it would pledge Congress to endow the establishment with any support,” and believed that sale of federal lands within the District might properly support such a local university. Annals of Congress, supra note 30, at 6:1702. Therefore, when Madison proposed a national seminary of learning, he meant that Congress may act pursuant to its exclusive jurisdiction over the District of Columbia granted in Article I, Section 8, Clause 17. This in no way involved education of the people in the several states as in the earlier “national university” plan. As it turned out, this later proposal drew no attention from the House whatsoever.51. U.S., Congress, House, Representative Mitchill delivered the report on President Madison’s March 4, 1809 proposal for the establishment of a seminary of learning, 11th Cong., 3rd sess., 18 February 1811, Annals of the Congress of the United States, contained in Joseph Gales, comp., The Debates and Proceedings of the Congress of the United States, 42 vols., (Washington: Gales and Seaton, 1834, Library of American Civilization 21624), 22:976-77. U.S., Congress, House, Representative Wilde delivered the report on President Madison’s September 1 and December 5, 1815 proposal which relates to the subject of a national seminary of learning, 14th Cong., 2nd sess., 11 December 1816, Annals of the Congress of the United States, contained in Joseph Gales, comp., The Debates and Proceedings of the Congress of the United States, 42 vols., (Washington: Gales and Seaton, 1834, Library of American Civilization 21633), 30:257-60.See also U.S., Congress, House, Representative Atherton, offered for consideration an amendment to the Constitution granting Congress power to establish a national university which was rejected, 12 December 1816, Id. at 30:268. U.S., Congress, House, Representative Wilde moved successfully to discharge indefinitely the Committee considering the bill for establishing a national university on the basis that such a bill was not intended for Congress but only for the people, 3 March 1817, Id. at 30:1063-64.52.Annals of Congress, supra note 51, at 22:976.53.Annals of Congress, supra note 51, at 22:977.54. Richardson, Presidents, supra note 16, at 2:18, First Annual Message, December 2, 1817.55. Richardson, Presidents, supra note 16, at 2:18, First Annual Message, December 2, 1817.56. Richardson, Presidents, supra note 16, at 2:18, First Annual Message, December 7, 1817.57. U.S., Congress, House, Representative Hill submitted for consideration a resolution (which was rejected) to establish a national university within the District of Columbia, but if that was thought objectionable, to then apply to the people to be constitutionally vested with said authority, 16th Cong., 1st sess., 23 December 1819, Annals of the Congress of the United States, contained in Joseph Gales, comp., The Debates and Proceedings of the Congress of the United States, 42 vols., (Washington: Gales and Seaton, 1834, Library of American Civilization 21638), 35:780-81.58. Richardson, Presidents, supra note 16, at 2:311P First Annual Message, December 6, 1825.59. Richardson, Presidents, supra note 16, at 2:311, First Annual Message, December 6, 1825. President John Quincy Adams approached the establishment of a university on somewhat a different basis. He noted that the

establishment of an uniform standard of weights and measures was one of the specific objects contemplated in the formation of our Constitution, and to fix that standard was one of the powers delegated by express terms in that instrument to Congress.

From this he reasoned, that connected with the establishment of an university, or separate from it, might be undertaken the erection of an astronomical observatory, with provision for the support of an astronomer, to be in constant attendance of observations upon the phenomena of heavens, and for the periodical publication of his observations.

Id. at 2:313. It may be that “the cause of science” was so closely allied in his mind with a university and astronomical observatory that he considered them proper objects pursuant to Congress’ authority to fix the standard of weights and measures, once scientifically ascertained. But see text accompanying note 18 supra.60. President Madison had vetoed a similar bill which pledged certain funds for internal improvement such as constructing roads and canals, as unconstitutional and beyond the power of Congress to regulate commerce among the several states, or provide for the common defense and general welfare. Richardson, Presidents, supra note 16, at 1:584-85, Veto Messages, March 3, 1817.61. Richardson, Presidents, supra note 16, at 2:491-92. Veto Message, May 27, 1830. President Monroe’s objections were also noted by Jackson in his Veto Message. Id. at 2:486.62. Richardson, Presidents, supra notes 16, at 2!491. Veto Messages, May 27, 1830. Jackson also noted: “In no government are appeals to the source of power in cases of real doubt more suitable than in ours. No good motive can be assigned for the exercise of power by the constituted authorities, while those for whose benefit it is to be exercised have not conferred it and may not be willing to confer it.” Id. at 2:492. See text accompanying note 111 infra.63. Richardson, Presidents, supra note 16, at 5:544, Veto Messages, February 24, 1859.64. Richardson, Presidents, supra note 16, at 5:544, Veto Messages, February 24, 1859.65. Richardson, Presidents, supra note 16, at 5:545, Veto Messages, February 24, 1859.66. Richardson, Presidents, supra note 16, at 5:545, Veto Messages, February 24, 1859.

Should the time ever arrive when State governments shall look to the Federal Treasury for the means of supporting themselves and maintaining their systems of education and internal policy, the character of both Governments will be greatly deteriorated. The representatives of the States and of the people, feeling a more immediate interest in obtaining money to lighten the burden of their constituents than for the promotion of the more distant objects intrusted to the Federal Government, will naturally incline to obtain means from the Federal Government for State purposes. If a question shall arise between an appropriation of land or money to carry into effect the objects of the Federal Government and those of the States, their feelings will be enlisted in favor of the latter. This is human nature; and hence the necessity of keeping the two Governments entirely distinct. The preponderance of this home feeling has been manifested by the passage of the present bill. The establishment of these colleges has prevailed over the pressing wants of the common Treasury. Id.

Buchanan correctly articulated the tendency to unconstitutionally balance federal funds between that which was enumerated and that which was expedient. A present day application is clearly visible as defense purposes are played off against the Department of Education ‘needs.’ See also text accompanying note 74 infra.67. Richardson, Presidents, supra, note 16, at 5:546, Veto Messages, February 24, 1859.68. Richardson, Presidents, supra note 16, at 5:547, Veto Messages, February 24, 1859. The President added; “Should Congress exercise such a power, this would be to break down the barriers which have been so carefully constructed in the Constitution to separate Federal from State authority.” Id.69. Morrill Land Grant Act, 12 Stat. at Large 503 (1862). President Lincoln signed this Act into law on July 2, 1862.70. Harry Kursh, The United States Office of Education (Philadelphia: Chilton Company, 1965), 27. Even the limited purpose of the Act, to provide funds for colleges and universities from the sale of federal lands, has been expanded beyond its original purpose. By 1965, every state had “at least one college or university which received direct cash grants from the Federal Government, in lieu of land sales.” Id.71. Justin Morrill, An Address in Behalf of the University of Vermont and State Agricultural College, at Montpelier, October 10, 1888 (Montpelier: Argus and Patriot Printing House, 1888, Library of American Civilization 40011), 1.72. U.S., Constitution, art. 4, sec. 3, cl. 2 supra note 11.73. Richardson, Presidents, supra note 16, at 5:548-50, Veto Message, February 24, 1859.74. Richardson, Presidents, supra note 16, at 5:548, Veto Messages, February 24, 1859. See note 66 supra. See also Hinsdale, U.S. Education, supra note 25, at 2:1275-87.75.See Hinsdale, U.S. Education, supra note 25, at 2:1268-75.76.See Hinsdale, U.S. Education, supra note 25, at 2:1298.77. Hinsdale, U.S. Education, supra note 25, at 2:1305.78. Hinsdale, U.S. Education, supra note 25, at 2:1305.79. Richardson, Presidents, supra note 16, at 1:409. Sixth Annual Message, December 2, 1806. See text accompanying notes 41-42 supra.80. Another instance of federal surpluses should also be considered. A Report issued by the Commissioner of Education recalled quite correctly that “by the year 1836 a considerable surplus over and above the wants of the Government had accumulated in the National Treasury, the disposal of which became a political question.” Hinsdale, U.S. Education, supra note 25, at 2:1286-87.
The surplus as of January 1, 1837 was $41,468,859. The eventual distribution of this money found its way to the states on a pro-rata basis. The states in turn executed various instruments promising repayment “whenever they should be required by the Secretary of the Treasury for the purpose of defraying any wants of the public Treasury.” Id. at 2:1287. The Commissioner of Education observed that as of 1895, “the States receiving the deposits have never repaid them, and have never been called upon to do so.” Id. Congress acknowledged it could not control the purpose to which the disposition of these funds would be applied. As it turned out many states applied them to their own educational programs.
Former President Jackson considered distribution of national surpluses to be prohibited by the Constitution. Originally Jackson had suggested an amendment to the Constitution to permit such a distribution from the Federal Treasury. Richardson, Presidents, supra note 16, at 2:484. He later opposed this suggestion, noting that such a distribution would be ruinous to the Union, constitutional provisions and all. See Edward G. Bourne, The History of the Surplus Revenue of 1837, (New York: G. P. Putnam’s Sons, 1885, Library of American Civilization 10050), 20. The figure of 41,468,859.97 was quoted by Bourne. Id. at 16. Bourne also notes that Jackson was opposed to the whole matter of distribution on grounds of constitutionality and common sense. Id. at 20.